98 N.Y.S. 557 | N.Y. App. Div. | 1906
One John Blake was convicted -in Part" I of the Court of General Sessions of the’ Peace in and for the county of New.. York before the learned recorder on November 29, 1905, upon an indict-ment found May 25, 1904, for selling an article under ¿ false label. Motions for .a new trial, in arrest of judgment, and for a certificate
The subject of writs of prohibition has been so fully discussed in Quimbo Appo v. People (20 N. Y. 531) and in the recent case of People ex rel. Hummel v. Davy (105 App. Div. 598; affd., sub nom. People ex rel. Hummel v. Trial Term, 184 N. Y. 30) that it seems unnecessary to consider further the origin, history or' limitations generally of said writ.
The important question involved in this appeal, important not only to the people and .the defendant in the case under consideration, but of - far-reaching importance in the administration of criminal law, is, has the Court of General Sessions power, after judgment,
In People v. Glen (173 N. Y. 395) Judge Werner, in discussing section 313 of the Code of Criminal Procedure regulating motions, to set aside indictments, referred to the fact that from time immemorial common-law courts had quashed indictments, on motion, for defects in form and other irregularities, but added: “ Such matters are now regulated by the provisions of the Code of Criminal Procedure, and however inconvenient, or "even oppressive, they may appear to be in specific cases, the courts must apply them as best they can, for they embody the commands of the law-making power in matters wherein its fiat is supreme and final.” . We have, then, the authority of the Court of Appeals that prior to the statute there existed no power in the court, to grant a new trial on the merits after conviction of a felony -for any reason, and that now the statute is imperative and controlling on all matters of criminal' procedure:
We now examine the statute. Section 462 of the Code of Criminal Procedure provides that: “ A new trial is a re-examina
'“ 6. ‘When' the verdict is contrary to law or clearly against evidence;
“ 7. Where it is made to appear, by" affidavit^ that upon another trial-the defendant can produce evidence such as, if' before received, would probably have changed the verdict ;* * *
■ Section 466 provides that; “ The application for a new -trial must be made before judgment, except an. application made under subdivision seven of section four hundred and sixty-five, which may be made at any time within one year, and except in case of a sentence of death, when the application may be made at any time before execution, * ' *
In the case at bar 'the application. was not under subdivision 7 of section 465 upon the ground of newly-discovered evidence, and was -made after judgment and not before. The learned judge at Special Term, in his opinion herein- (People ex rel. Jerome v. Groff 49 Misc. Rep. 72, 73), said : Rot always is the word must ’ to be construed as mandatory.” That is quite true, but considering the history of these provisions, the prior state of the law,- and that new trials in criminal cases are permissible by statute- only,, if seérns to me that the words.are too plain and imperative to permit of such, construction. It is like a statute of limitations. If the motion for a new trial “ may ” be made after -judgment, “ may ” a motion upon the ground of‘ newly-discovered evidence "other than capital be made after a year % If. not, .why not ? When the statute was first passed (Laws of 1881, chap, 442) the provision for the motion upon the ground of newly-discovéred evidence was also required,to be made before judgment, the extension for one year having been inserted by chapter 534 of the Laws of 18.87, to' take effect on June sixth of that year. In a case in which the conviction was had, before said amendment Judge Andrews said in People v. Bradner (107
We are, therefore, of the opinion that the statute means what it says, and that there is no room for construction. If it were decided otherwise, a new opportunity would be afforded to invite the law’s • delay. , In the case at bar the question of the Statute of Limitations can be raised and disposed of upon the appeal from the judgment; and it appears from the record that a certificate of reasonable doubt has already been issued and the defendant admitted to bail, so that no great hardship to the defendant clamors for a relaxation of the law for the benefit of an individual and against the public interest. The Special Term of the Supreme Court had power to issue the writ of prohibition to the General Sessions. (Code Civ. Proc. § 2092.) It is the appropriate remedy when a court is about to exercise a. power it does not possess. The General Sessions had no power to grant the motion for a new trial made after judgment. The writ was properly asked for because the People have no right of appeal from an order granting a new trial in a criminal case. (Code Crim. Proc. § 518.)
If I am right in my view of the law, it follows that the order appealed from should be reversed and the motion for the issuance of an absolute writ granted.
O’Brien, P. J., Patterson, Ingraham and Laughlin, JJ., concurred.
Order reversed and motion granted. Order filed.
See Laws of 1881, chap. 442, § 466, as amd. by Laws of 1882, chap. 65.— [Rep.